How to File for a No-Fault Divorce?

Nebraska is one of the no-fault divorce states. This means that you don’t have to state a specific reason for the divorce as long as one party states the marriage is “irretrievably broken.” So how do you go about filing for a no-fault divorce in Nebraska? Read more below.

How to File for a No-Fault Divorce?

Filing the Action

The divorce action starts by filing a Complaint for Dissolution of Marriage with the clerk of the district court. The Complaint includes the party’s requests for relief in the action. These requests often include asking for a divorce, an equitable or fair division of the assets and debts, and custody of the children. If custody is involved, the law in Nebraska has specific requirements as to what must be stated in the Complaint regarding the children. These include where the children have been living the last five years, whether there are any existing court orders addressing custody, among others. The Court also requires confidential statistical information provided to the Court when filing, such as the parties’ birth dates, places of birth, among others. Although this confidential information document is filed with the Court, it is not made available for public viewing.

Serving the Spouse

The Complaint doesn’t grant the filing party the relief requested. It only provides notice to the Court and the other party what is being requested. The Complaint must be served on the other spouse. Generally, the Complaint must be served by personal service. This means a sheriff or other civil process server has to physically hand a copy of the Complaint to the other party. Before the sheriff can serve the Complaint, a request for service has to be filed with the Court by filing a praecipe. The praecipe then results in the Court issuing a summons. The filer of the divorce then needs to provide the Complaint and Summons to the sheriff. Most sheriff’s offices require a payment upfront for the cost of service. The other spouse can waive this service requirement by signing a voluntary appearance acknowledging that they received the Complaint and then filing this notarized document with the Court. There are other service methods available but the above are the most common.

The Answer

Once the other spouse is served, he or she has 30 days to file an answer with the Court. This answer usually includes a counter complaint, which is the other spouse’s requests for relief in the divorce. The filing spouse then files an answer to this counter complaint with the Court. Now the Court and both parties know what the parties are requesting for relief.

Temporary Hearing

Once the other spouse has been served, a motion for temporaries may be filed and set for hearing. The hearing may be prior to the 30 days to file an answer has expired. The party that wants a temporary order files a motion for temporaries with the Court after obtaining a hearing date from the Court. In Nebraska, not all counties handle temporary hearings in the same manner. Some judges hold the temporary hearing in the judge’s office (chambers) with only the attorneys present, if both parties have attorneys. Other judges hold the temporary hearing in an open courtroom, sometimes with many other cases being set at the same hearing time. Many judges only hear argument at the temporary hearing. All evidence must be submitted prior to the hearing in the form of a notarized and sworn statement called an affidavit. These affidavits are often due to the Court a couple of business days prior to the hearing. How a specific court handles a temporary hearing can often be found in the Court’s local rules listed on the Nebraska Supreme Court’s website.

At the temporary hearing, the Court will often decide who has custody of the children while the case is pending, what the weekly parenting time schedule will be, order child support, and order temporary alimony/spousal support. Most financial issues are not addressed at a temporary hearing. Often a temporary hearing is not necessary if children are not involved and temporary spousal support is not requested. Especially when there are children involved, the temporary hearing is very important as it sets the parenting time that most often stays the same until the divorce is finalized.

Parenting Class/Mediation

If there are children involved, the parties are required to take a parenting class about how to co-parent. The classes that are approved for this purpose are listed on the Nebraska Supreme Court’s website. The class can be taken online and usually takes about 3-4 hours to complete. Each parent takes the class separately. Once both parties have taken the class, the parties are generally required to attempt mediation. Mediation usually only addresses the parenting time issues, such as the weekly parenting time schedule, how to handle holidays, exchanges, etc. It does not usually address financial issues, such as child support or property division. Once both parties have agreed to a mediator or a mediator has been assigned, the parties each contact the mediator and meet with the mediator separately for an individual session. Once both parties have had an individual session, then they meet with the mediator at the same time for a joint session. Even if the parents can’t agree on custody or the weekly parenting time schedule, most parents can often work out many of their other issues to reach a partial parenting plan. For example, even if the parents can’t agree on the weekly parenting time schedule, most parents can agree on a holiday schedule and where/when they will exchange the children when the children go from one parent to the other.

Discovery

The main tool to determine the property and debt issues is collectively called discovery. Discovery are generally formal questions served on the other party that the other party then has 30 days to respond to in writing. The most commons forms are called Interrogatories and Request for Production of Documents. Completing discovery usually takes a lot of time and is often the most burdensome part of the divorce process for the parties. It often includes obtaining and providing many months of financial statements and other proofs of assets and debts in addition to answering detailed questions regarding the property and debts. If there are children involved, the questions may also relate to custody and parenting time issues.

Settlement/Trial

Once mediation has been attempted and discovery completed, more earnest attempts at settlement negotiations between the parties’ attorneys often begin. If the parties can’t reach an agreement, then the judge decides the case at trial.

Summary

This is the basic process for most divorces. The divorce action can be much simpler. For example, in a case where there are no children and little to no assets or debts, formal discovery may be unnecessary and the steps related to custody/parenting time do not apply. Also, if the other party is served and does not respond, the case can often be set for final hearing, called a default hearing, after the time to file an answer and the mandatory 60 day waiting period for a divorce has passed. It can also be much more complicated with requests for hair follicle drug testing, subpoenas, depositions, and expert witnesses involved. Whatever your situation, an experienced attorney can guide you through the process.

Fowler & Kelly Law, L.L.P.

If you are faced with a divorce, child custody, or child support action, shouldn’t you hire an attorney you can count on? Because trial is not always the best option, our clients also count on us to fight for them at all the pretrial stages of their case. We work to resolve issues outside of the courtroom when possible to keep costs low and tensions to a minimum. Whatever the case, if we accept the responsibility of representing a family law client, our client can count on us to do everything possible to get results for them. They can count on us to explore trial options, mediated agreements, and other alternatives. Often our skills and experience, coupled with our persistence and commitment to our clients, mean that we are successful in meeting our clients’ wants at an affordable cost.